Tipperary Developments Pty Ltd v The State of Western Australia
[2004] WASC 179
TIPPERARY DEVELOPMENTS PTY LTD -v- THE STATE OF WESTERN AUSTRALIA [2004] WASC 179
| SUPREME COURT OF WESTERN AUSTRALIA | Citation No: | [2004] WASC 179 | |
| Case No: | CIV:2490/1992 | 29 APRIL 2004 | |
| Coram: | MURRAY J | 17/08/04 | |
| 18 | Judgment Part: | 1 of 1 | |
| Result: | Leave granted | ||
| A | |||
| PDF Version |
| Parties: | TIPPERARY DEVELOPMENTS PTY LTD THE STATE OF WESTERN AUSTRALIA |
Catchwords: | Practice and procedure Application for leave to administer further interrogatories and for order that defendant answer interrogatories Turns on own facts Principles discussed |
Legislation: | Nil |
Case References: | Austin v Austin [1905] VLR 377 Cahill v Queensland Housing Commission (No 1) [1964] QLR 94 Goding v Queensland Newspapers Pty Ltd (1965) 113 CLR 170 May v Bowering [1928] SASR 226 Mitchell v Tsiros (No 1) [1982] VR 191 Seidler v John Fairfax and Sons Ltd [1983] 2 NSWLR 390 Shannon v Whiting (1900) 26 VLR 392 Simpson v Midalco Pty Ltd, unreported; SCt of WA; Library No 6637; 19 March 1987 Spedley Securities Ltd v Yuill (1991) 5 ACSR 758 State of WA v Wardley Australia Ltd (1991) 30 FCR 245 Tipperary Developments Pty Ltd v State of Western Australia [2004] WASCA 15 Gilchrist v R Wallace Mitchell Pty Ltd [1972] VR 481 Irvine v State of Western Australia [2000] WASCA 56 James v Davies (1883) 9 VLR 140 Konings v Naylor [1964] Qd R 235 Re Strachan [1895] 1 Ch 439 Western Australia v Watson [1990] WAR 248 |
JURISDICTION : SUPREME COURT OF WESTERN AUSTRALIA
- IN CHAMBERS
- CIV 1473 of 1994
CIV 1878 of 1994
- Plaintiff
AND
THE STATE OF WESTERN AUSTRALIA
Defendant
Catchwords:
Practice and procedure - Application for leave to administer further interrogatories and for order that defendant answer interrogatories - Turns on own facts - Principles discussed
Legislation:
Nil
Result:
Leave granted
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Category: A
Representation:
Counsel:
Plaintiff : Mr N W McKerracher QC & Mr J C Giles
Defendant : Mr K M Pettit SC
Solicitors:
Plaintiff : Solomon Brothers
Defendant : State Solicitor
Case(s) referred to in judgment(s):
Austin v Austin [1905] VLR 377
Cahill v Queensland Housing Commission (No 1) [1964] QLR 94
Goding v Queensland Newspapers Pty Ltd (1965) 113 CLR 170
May v Bowering [1928] SASR 226
Mitchell v Tsiros (No 1) [1982] VR 191
Seidler v John Fairfax and Sons Ltd [1983] 2 NSWLR 390
Shannon v Whiting (1900) 26 VLR 392
Simpson v Midalco Pty Ltd, unreported; SCt of WA; Library No 6637; 19 March 1987
Spedley Securities Ltd v Yuill (1991) 5 ACSR 758
State of WA v Wardley Australia Ltd (1991) 30 FCR 245
Tipperary Developments Pty Ltd v State of Western Australia [2004] WASCA 15
Case(s) also cited:
Gilchrist v R Wallace Mitchell Pty Ltd [1972] VR 481
Irvine v State of Western Australia [2000] WASCA 56
James v Davies (1883) 9 VLR 140
Konings v Naylor [1964] Qd R 235
Re Strachan [1895] 1 Ch 439
Western Australia v Watson [1990] WAR 248
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1 MURRAY J: This litigation has a long history both in respect of the pursuit of the claim and the counterclaim. It has been marked by fits and starts, long periods of inactivity and, in general, what may only be described as desultory action, at best, by the parties to progress the litigation generally. I need not for the purpose of these reasons discuss that sorry history in any detail. Much of it is referred to in the decision of the Full Court, Tipperary Developments Pty Ltd v State of Western Australia [2004] WASCA 15 in which the Full Court, on 5 November 2003, allowed the plaintiff's appeal against an order dismissing the action for want of prosecution, an order which had been made on 18 December 2002 following the hearing in October of that year of an application originally made on 11 December 2001.
2 Earlier, on 20 February 1997, a very large number of interrogatories had been administered by the plaintiff to the defendant. Those interrogatories were not answered until 11 March 1999. There were 181 interrogatories administered. Quite a number were answered, but objection was taken to answering the bulk of them, on various grounds to which I shall return. The deponent in answer to the interrogatories was a Mr Wauchope, the Director-General of the Department of Premier and Cabinet, the Department having the carriage of the litigation on behalf of the defendant.
3 Ultimately, a conference between counsel was arranged. It does not seem to have advanced the position in respect of the answers sought to the interrogatories administered. I need mention only one matter, I think. In par 6 of his affidavit, Mr Wauchope objected to answering a large number of specified interrogatories on the ground that to obtain the information, "requires the assistance of persons no longer in the employment, agency or service of the Defendant, who cannot be compelled to co-operate with the Defendant, and who have not agreed to assist the Defendant or have only done so on terms involving financial conditions that are unacceptable to the Defendant."
4 It seems that the point taken for the plaintiff was that this was not a valid ground of objection to answering interrogatories, but a statement that no answer was possible or, putting it another way, that the defendant in the person of the officer who had been properly nominated to deal with the interrogatories and who had made proper inquiry had been unable to ascertain the answer and did not know the answer. The State accepted that an appropriate answer to those interrogatories would have been just that; despite all reasonable and appropriate inquiry the answer was not known.
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5 I shall return, in due course, to that proposition and the question whether an answer of that kind is adequate and sufficient. Certainly at the time that this matter was being discussed in May 1999, as I understand the position, the defendant took the view that there was little point in making such an answer but it was observed that there were indeed other valid objections to answering the interrogatories in question.
6 Following this process of consultation, it appears that on 30 June 1999 a document entitled "Readministered plaintiff's interrogatories" was filed or, in any event, served, without leave. So far as I can see, nine of the interrogatories were the subject of amendment. As I understand it, answers have been provided to some of these interrogatories, at least in an informal way, but it remains the case that leave has never been obtained to administer these new or amended interrogatories. At the hearing before me of the original application by the plaintiff, which was simply for an order that the defendant provide within 35 days further and better answers to interrogatories administered by the plaintiff, dated 20 February 1997, I permitted an amendment so that in respect of the interrogatories presently under discussion the application is that the plaintiff have leave to administer the amended interrogatories. Whether or not such leave should be granted will turn, therefore, on the question whether the interrogatories as so amended remain the subject of objections validly taken.
7 As to the balance of the application it is sought to amend the application to one seeking answers within 35 days to the unamended interrogatories to which the defendant has made objection, in every case by Mr Wauchope's affidavit of 11 March 1999.
8 Before going to the merits in any degree, I should complete the chronology. I have noted that no expedition was shown between when the interrogatories were originally administered and when answers were provided and objections taken on 11 March 1999, but it is fair to say that that was a period of delay by the defendant and inaction on the part of the plaintiff. The answers having been given and the readministered interrogatories having been served on 30 June 1999, nothing was done by the plaintiff to pursue the matter thereafter until the action was struck out in December 2002, 2½ years later.
9 Since the Full Court allowed the appeal against the strike-out order there has been rather more activity. On 5 December 2003, the plaintiff's current solicitors wrote to the defendant's solicitor pursuing the unanswered interrogatories. By 13 January 2004 it was apparent that the defendant's position remained unchanged. The matter was touched on at a
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- directions hearing before me when orders were sought in relation to answers to the interrogatories. I did not seek then to resolve the issues, but informally directed the parties to confer. The position today remains unchanged.
10 Of course, of delay is relevant to the question whether orders of the kind now sought ought be made in any event. There has undoubtedly been substantial delay for which, in my opinion, both parties have from time to time been responsible, but I do note that the defendant continues particularly to rely upon the grounds of objection taken in Mr Wauchope's affidavit of 11 March 1999. No specific prejudice is asserted in relation to the capacity to answer any particular interrogatory on the ground of the passage of time.
11 Under O 27 r 1 of the Rules of the Supreme Court1971 (WA), the process of discovery by interrogatories requires leave of the Court. The general rule is that leave will be granted but once and a process of repeated interrogation will not be permitted: Goding v Queensland Newspapers Pty Ltd (1965) 113 CLR 170, 174. The current practice of the Court is to give effect to that general rule and the Court is particularly encouraged to do so by the principles of positive case flow management which find their expression in O 1 r 4A and r 4B, but in the circumstances to which I have referred above, it seems to me that I would not be entitled to rule against the application to administer the nine amended interrogatories upon a ground of that kind. As I have already intimated I should, I think, consider such substantive objections as are raised.
12 In that regard it is as well in light of the arguments presented to me to proceed from an understanding of the purpose of interrogation. Fundamentally, it is concerned to obtain answers which may then, under the Rules, be introduced as evidence in the proof of the interrogator's case, effectively by way of admission. Expense of proof may thereby be saved and indeed such a mode of proof may be employed where no other is in fact available. It follows that to be admissible in evidence the answers to interrogatories must be of a kind which would be admissible in evidence if a witness were called to prove that fact: Mitchell v Tsiros (No 1) [1982] VR 191, Spedley Securities Ltd v Yuill (1991) 5 ACSR 758, 762.
13 From that all else flows. The answer to an interrogatory must state the facts without evasion, but a state of mind, an intention or knowledge, is a matter of fact and may be interrogated upon where relevant: Seidler v John Fairfax and Sons Ltd [1983] 2 NSWLR 390, 394. The application before the Court requires no consideration of whose state of mind or
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- belief may be attributed to the defendant, but it is important to note that a party may not be interrogated as to a belief founded on privileged or inadmissible materials: Shannon v Whiting (1900) 26 VLR 392, 395.
14 That is not the same question as the belief of the deponent providing the answers to interrogatories. In this case, as in the case of a party which is a corporation, the affidavit verifying answers to interrogatories is to be made by an officer of the Crown: O 27 r 6(1)(b). That person is to be a person who has knowledge of the facts: r 6(3). The answers must be given to the best of the deponent's knowledge, information and belief. That is not expressly a requirement of the Rules, but it flows from them and it is the belief thus deposed to which constitutes the admission within the answer given to an interrogatory: Shannon v Whiting at 395, and Sharpe v Smail (1975) 5 ALR 377, 379.
15 It follows that all reasonable and proper inquiries must be made of those who may be supposed to know the primary facts which form the subject matter of the interrogatory. In this case those inquiries must be made of those who were servants, agents or officers of the Crown acting in an official capacity at a time relevant to the interrogatory under consideration. In other words, persons who were formerly officers of the Crown at the relevant time but are not so at the time when the inquiry is made must be asked to provide information: Spedley at 762 – 3.
16 And yet it should not be overlooked that it is the knowledge, information and belief of the deponent providing the answer to the interrogatory which must be sworn to. Where that knowledge and information is of a hearsay character obtained by inquiry of others, it is the belief of the deponent which provides the relevant fact constituting the admission contained in the answer. It follows that it is open to such a deponent to assert that he or she does not believe the fact required by the interrogatory if indeed it is the case that there is reason to doubt the truth or correctness of the information supplied on inquiry: Sharpe at 133 and Spedley at 763.
17 A related matter material to this case which has often been productive of difficulty in relation to the obligation to answer interrogatories is where the true character of the interrogatory seeks from the party interrogated the expression of an opinion or conclusion. A number of the authorities were considered by Master Seaman QC, as his Honour then was, in Simpson v Midalco Pty Ltd, unreported; SCt of WA; Library No 6637; 19 March 1987. At 14, the Master said:
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- "In my opinion, all that is to be drawn from those authorities is that there are many circumstances in which it is either unnecessary or oppressive to order an interrogatory which goes to a matter of an opinion. A party is only obliged to answer in accordance with his information and belief derived from those to whom the law directs him to apply before making his answers, and the answers will demonstrate whether or not the law as to inquiry has been carried out."
18 It seems to me that the question turns upon the fact that the party interrogated is obliged to answer according to the best of his knowledge, information and belief. In a case such as this where the properly nominated deponent has no knowledge of the subject of the interrogatory he must make proper inquiry of those who are or have been servants or agents of the party for whom the answers are to be given and of those who may be supposed to have knowledge of the subject matter of the interrogatory acquired at a relevant time when they were servants or agents of the party. And the answer, to be of any value, must be in relation to a matter which could be elicited in evidence.
19 If an opinion of a kind which does not depend upon expertise is sought then I think the interrogatory may readily be held to be proper on reasonable inquiry because a non-expert may be permitted to give such an opinion in evidence; eg, as to the speed at which a driver was travelling: May v Bowering [1928] SASR 226, 228.
20 On the other hand, an interrogatory concerning a matter of expert opinion will, I think, certainly not be required to be answered where the deponent has not the relevant expertise or knowledge and has not the capacity to obtain the expert opinion by reasonable inquiry of those to whom I have referred above, of whom the deponent is bound to inquire. Really, as it seems to me, the requirement to answer an interrogatory concerning a matter of expert opinion will only be held to exist where the expertise upon which the opinion must be based is to be found "in house", so to speak, or where the expert opinion has been obtained and provided to the party interrogated.
21 However that may be, I ought to make clear my view that it can, of course, be no answer to an objection that what is sought calls for the expression of an opinion, that the answer seeks a matter of fact, unless by that is meant that the interrogatory seeks to elicit a fact which is not an opinion or expression of belief but a matter of objective, primary fact upon which such an opinion or belief might be based.
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22 By O 27 r 5, a principal ground of objection to answer an interrogatory, in a list of grounds which is not a closed list, is that the interrogatory is "unreasonable, prolix, oppressive or unnecessary". The defendant relies on a number of matters under this general heading, other than matters the subject of other specific objections. In the first place, it is said that although there were nominally originally 181 interrogatories, some of which have been answered and some of which are not now pursued further, a number of the interrogatories had a number of parts to them and in truth it is said that there were actually 323 interrogatories, many of which it is said address matters dealt with by witnesses in evidence given before the Royal Commission into Commercial Activities of Government and Other Matters.
23 It is said that of the persons of whom inquiry must be made to answer the bulk of the interrogatories, a number of them have declined to co-operate with the defendant and the avenues of fruitful inquiry are limited. Therefore, it is submitted generally, much of the material sought is unnecessary because it is already a matter of record before the Royal Commission. An unreasonable burden would be imposed on the deponent and the defendant disproportionate to the benefits to be obtained, rendering it oppressive to require answers to be given: Austin v Austin [1905] VLR 377, 382 – 3, 384.
24 In my opinion, I may not exercise my discretion whether or not to require interrogatories to be answered on general grounds of this kind in this case. This litigation is on any view a very substantial commercial dispute. It is unnecessary here to discuss the matter in detail but a perusal of the pleadings shows that the issues of fact thrown up by the claim and counterclaim and the defences thereto are potentially very numerous indeed. A great amount of the dispute remains in issue between the parties. It may be that answers to interrogatories will render the process of trial more expeditious if answers can be provided. Without addressing more specific objections, the generally put objection that the interrogatories as a whole are unreasonable, prolix, oppressive or unnecessary seems to me not to be made out.
25 There is no alternative I think but to address the specific grounds of objection and I propose to do that in the order in which they are raised in Mr Wauchope's affidavit of 11 March 1999.
26 In par 5 an objection is raised to answering specified interrogatories on the ground that "any answer necessarily requires one to form opinions, exercise judgment or draw conclusions from the Defendant's records
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- rather than ascertain objective facts." I think this misunderstands the nature of a valid objection of this kind. As I have said, an opinion about a matter of fact may be an admissible form of answer to an interrogatory where the opinion or belief is of a non-expert kind within the knowledge of those of whom the parties or its nominated deponent must make inquiry. An expert opinion will be similarly admissible and required as an answer to an interrogatory where it is within the expertise of those of whom the party or its nominated deponent must make inquiry.
27 But an opinion in this context means what it ordinarily means, a view about a matter of fact based on knowledge or acceptance of a group of primary facts and in that regard it is clear, I think, that it can be no objection that the deponent needs to review the defendant's records and documents. The decision in Cahill v Queensland Housing Commission (No 1) [1964] QLR 94 is sufficient authority for that view, which must be correct as a matter of general principle. Nor in that context can it be a valid ground of objection that the deponent is required to make a judgment about a fact or draw a conclusion as to the existence of a fact where an inquiry does not provide direct evidence of the existence of the fact. As I have said, that is to be dealt with otherwise in the answer given.
28 As to those interrogatories to which objection is taken on the ground that they require an answer in the form of an opinion, as I understand the position the defendant agrees to provide answers to nine interrogatories which have been the subject of some amendment. They are 15, 17, 23, 25, 32, and 47 to 50 inclusive. On the other hand, in par 8 of the defendant's outline of submissions it is said that interrogatories 10, 16, 23, 26, 27, 34(d), 45 to 50, 51, 72 to 74 and 113 are not now pursued. I propose to say nothing further about the objections originally taken in Mr Wauchope's affidavit to any of the interrogatories enumerated above.
29 Otherwise I would not uphold this ground of objection in respect of interrogatories 9, 19, 21, 22, 24, 28, 29, 33 to 36, 42 to 44, 52 to 57, 60 to 63, 67 to 71, 75 to 79, 81 to 83, 86 to 108, 110, 115 to 155, 157 to 160, and 174 to 179 inclusive. That observation, of course, carries no implication as to whether any of these interrogatories might be the subject of any other valid ground of objection or that there might be a valid reason why any of them may not be answered.
30 I would uphold this ground of objection with respect to interrogatory 31 which seems to me clearly to seek Lloyd's inadmissible opinion as to the matters enumerated rather than to ask for any concrete factual information.
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31 I would make it clear that although I have said above that I would not uphold the objection with respect to the interrogatories 62 and 63, there are aspects of those interrogatories in respect of which I would uphold the objection. Shortly put, they are those parts of those interrogatories which require the expression of an opinion as to the accuracy of the liability of Rothwells and the accuracy of information conveyed in the document specified.
32 In my opinion, these parts of the interrogatories must, if they have any real meaning, be seeking accounting opinions. The objectionable parts of the interrogatories are 62(c) and (e) and 63(c), (e), (g), (i), and (k) to (r) inclusive. For the same reason, I would hold interrogatories 64 and 65 to be objectionable. In my opinion, interrogatories 111 to 114 inclusive are objectionable upon this ground, including interrogatories 112 and 114, despite the amendment proposed to be made thereto. Their essence remains the seeking of an opinion, not as to the state of mind of any nominated individual, but as to whether it was or was not in fact, or thought to be, to the "commercial advantage" of the SGIC and the GESB as referred to in the statement of claim to enter into the transactions the subject of these interrogatories.
33 Interrogatory 156 is, in my opinion, objectionable. It seeks no admission of fact, but a conclusion as to whether "the Government' had agreed to take a particular course for a particular purpose. Similarly, I think the objection is validly taken with respect to interrogatories 161 to 173 inclusive. Each of them purports to ask whether a nominated individual knew or had any concern about specified matters or whether nominated individuals became aware of specified matters, but the specified matters in every case involve a value judgment whether accounts gave a true and fair view of Rothwells' financial position, what the financial capacity of Rothwells was and what commitment (whatever that may mean) the Government may have made to the support of Rothwells. To the extent that the answers to these interrogatories might need to be framed to provide admissions, they are all effectively seeking inadmissible expert opinions and they are objectionable upon that ground.
34 Paragraph 6 of Mr Wauchope's affidavit raised the objection that to answer nominated interrogatories would require the assistance of persons no longer in the employment, agency or service of the defendant, "who cannot be compelled to co-operate with the defendant, and who have not agreed to assist the defendant or have only done so on terms involving financial conditions that are unacceptable to the defendant."
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35 Paragraph 7 adds the objection in relation to a more limited group of interrogatories that any answer would require the defendant to make inquiries of a person not admitted by the defendant to be its employee or agent at the material time. I think the second ground of objection can be shortly disposed of. If it is right that the person whose conduct or state of mind is the subject of the interrogatory is not established to be the alter ego of the defendant so as to fix the defendant with liability arising out of the conduct of the individual in question, or to fix the defendant with the knowledge of the individual in question, then any answer to the interrogatory in that context will not be admissible as an admission by the defendant.
36 But the fact that the individual was not a servant or agent of the defendant at the material time does not mean that an inquiry as to the facts need not be made of that person and, in my opinion, the authorities generally support the proposition that the defendant or its nominated deponent must make inquiries of those who may be established to be connected in a relevant way to the defendant for the purpose of establishing the fact the subject of the interrogatory to the best of the deponent's knowledge, information and belief: eg, Spedley at 763.
37 In par 7 of Mr Wauchope's affidavit no attempt is made to nominate the individuals of whom it is said that the defendant "does not admit" that the individual was its employee or agent at the material time. In argument it was put that the objection was intended to refer to Mr Lloyd as an officer of Rothwells before 1 January 1988, Mr Lloyd as a director of Rothwells after 1 January 1988, the SGIC and the GESB in respect of interrogatories 63 and 64, which I have already said I would find to be objectionable, and "officers in respect of alleged acts that the State denies fell within the authority of the relevant office." To the extent that such matters are relevant to issues raised in this litigation, the evidence at trial will no doubt lead to a capacity to draw the appropriate conclusion. At this stage, however, I have no evidence and the fact that there is no admission on the face of the pleadings would not be an appropriate basis to make a decision to uphold an objection formulated in this way.
38 As to the objection raised in par 6 of Mr Wauchope's affidavit, I have already noted that the defendant agrees that this is not strictly a proper ground of objection. Rather, it refers to a circumstance which may limit the capacity to provide an answer and in my opinion that is the way it ought to be dealt with by the defendant's nominated deponent. Take interrogatories 9(a) and (b) as an example. They ask whether a nominated document was given to Mr Burke or some other person and whether the
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- document was prepared at the request of Mr Burke or some other person. If an inquiry of Burke or some other person who might be expected to have knowledge of the particular document produces the result that the relevant information cannot be obtained, then the defendant's deponent may be able to swear that having made all proper inquiries he does not know and cannot answer. That having been put on oath, I would not, of course, permit any further interrogation or inquiry about the nature of the investigations made.
39 Again, to touch on another matter which was raised in argument, if it is the case that an interrogatory concerns the knowledge of a nominated individual and the individual is unco-operative, then such an answer as that referred to above may properly be given. Further, if the individual has made different and inconsistent statements on other occasions about the state of his or her knowledge, then it is not for the defendant's deponent to endeavour to sort out what piece of information is to be preferred. That would be a situation, in my opinion, which would justify the answer that the deponent is unable to provide the information and the ground, which need not be given in the answer, would simply be that the deponent does not know, does not have reliable information, and does not have the capacity to form the relevant belief. In this regard, of course, a deponent would always need to bear in mind the cautionary observation of Gibbs J in Sharpe at 133:
"Moreover, the fact that information comes from a suspect source will not always be enough to render it worthy of disbelief; for example, it may be supported by other credible material."
40 As to sources of information, the question of evidence given to the Royal Commission was touched upon in argument, but with respect to counsel, neither appeared to be in a position to make clear submissions as to the utility or capacity to refer to such a source for the purpose of making an affidavit of answers to interrogatories.
41 Certainly it seems to me that the submission made for the defendant that the draft answer to interrogatory 15, which would merely set out what would appear to be relevant evidence given by Mr Lloyd at the Royal Commission, is not a useful answer must be right. It is of no utility for the deponent to admit that particular evidence was given before the Royal Commission. In respect to the interrogatory in question, to refer to Mr Lloyd's evidence does not answer the question whether Mr Lucas, a director of Rothwells, telephoned Lloyd and told him something. In short,
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- that question could only be answered by asking Lloyd or Lucas or both. The information to ground the answer could not be obtained simply by perusal of the record of the Royal Commission. That would simply be a way of proving what was said at the Royal Commission in a way which, arguably, the interrogating party would be unable to do otherwise at trial.
42 Under the Royal Commission (Custody of Records) Act 1992, an Act which, by s 3(4) binds the Crown in right of the State, the record of the relevant Royal Commission includes transcript of evidence: s 4(1). By s 14, records transferred to the State Archives, including transcript the subject of a direction by the Royal Commission prohibiting its publication, "shall be provided to the State for the purposes of the conduct of civil litigation involving the State": s 14(3).
43 I assume, therefore, that the defendant automatically has access to the whole of the transcript of evidence before the Royal Commission, but s 3(3) of the Royal Commission (Custody of Records) Act provides that nothing in that Act affects the operation of s 20 of the Royal Commissions Act 1968 (WA). Section 20 of that Act provides:
"A statement or disclosure made by a witness in answer to any question put to him by a Commission or any of the Commissioners shall not (except in contempt proceedings or proceedings for an offence against this Act) be admissible in evidence against him in any civil or criminal proceedings in any Court in this State."
44 If such a witness is called as a witness at the trial of this litigation, he or she may, of course, be examined upon any relevant matter but consistent statements made before the Royal Commission could not be put. As to whether evidence given at the Royal Commission could be put as a prior inconsistent statement, that would depend upon the question whether to do so would infringe s 20 by seeking to make those statements admissible in evidence against the witness. My tentative view in the absence of argument would be that s 20 would apply to prevent that course. That does not mean that such a record should not be consulted on behalf of the defendant for the purpose of considering an answer to an interrogatory, but it is another reason, in my opinion, why an answer need not and should not be given in a form which makes it clear that all is being said is to recount evidence given before the Royal Commission.
45 I have already dealt with the general ground of oppression adverted to in par 9 of Mr Wauchope's affidavit. I need say no more about that
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- here but there are two other specific grounds to which I should give attention.
46 The first is that raised by par 8 of Mr Wauchope's affidavit that nominated interrogatories are objected to on the ground that they are not confined to matters of fact but raise questions of law, including the circumstances in which the knowledge of individuals may be attributed to the defendant. As to that aspect of the matter I have expressed my view that that will be a matter appropriately dealt with at trial when all the evidence is available. I have otherwise already dealt with some of the matters raised under this ground. And a number of the interrogatories to which objection is taken are not now pursued.
47 Of those that remain, I would not uphold the objection in respect of interrogatory 15 which, as amended, seems to me to be entirely concerned with matters of fact. As to interrogatory 19, it is objected that it requires a conclusion of law about the authority of Lloyd to act on behalf of the GESB. I disagree. It seems to me that it is concerned with what Lloyd in fact did or did not do, not the legal outcome of his act. Interrogatory 32, as proposed to be amended, is entirely factual, as I think are the amended interrogatories 47 to 50 inclusive. I can see no ground of objection to interrogatory 61. And so far as interrogatories 62 and 63 are concerned, I have already upheld objections to those parts which require the expression of an opinion. As they would remain they seem to me to be unobjectionable.
48 Interrogatories 87 to 89 inclusive, and 98, ask questions about solicitors acting for the Government or corporate clients. I think they should be answered and I would not take an answer that a firm of solicitors acted for the Government in relation to what is described as the PICL deal as in any way an admission that the Government acted in respect of that deal or was involved in any such deal in any way which might be relevant to the pleaded issues in this case. Similarly, I can see nothing objectionable in the interrogatories 157 and 159 which are concerned with inquiries which may have been made by Lloyd and Edwards. They are entirely factual and the answers require no admission or legal conclusion which may reflect adversely upon the position of the defendant.
49 On the other hand I would uphold this objection in relation to interrogatory 23 which still requires an admission about the purpose of the SGIC as a corporate entity, a matter which can only be answered as a matter of law when one knows the state of mind of those acting for the
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- SGIC in making the purchase, if such was the case, to which the interrogatory refers. Interrogatories 28 and 29 are, in my opinion, similarly objectionable, really upon the ground that they are embarrassing in the accepted sense. I do not understand the concept of the purpose of a meeting, nor do I understand how that might be relevant. Objection is taken on this ground to interrogatories 64 and 65. I have found them objectionable on a different ground and would see no need to add further comment at this point. Interrogatory 82 is objectionable for much the same reasons as those applying to interrogatories 23, 28 and 29. I have already found that objection may validly be taken to answering interrogatories 111 to 114 inclusive and again I see no need to add in this context to what I said about those interrogatories when making that ruling.
50 Interrogatory 156 is objectionable because it asks about what "the Government agreed" and that clearly involves a matter of law. Similarly, I would uphold the objection on this ground in respect of interrogatories 169 to 171 inclusive which ask about what individuals learned about the commitment of the Government to support Rothwells. Again, I am not sure that I understand what the word "commitment" means in this context, but if it has any meaning it would seem to refer to a legal liability, or the lack of one. And the same objection should be upheld for the same reason in respect of interrogatory 178.
51 The defendant objects to certain interrogatories on the ground of irrelevance. As to interrogatory 60, it is objected that the information provided by Mr Lloyd to Mr Rees of SGIC is irrelevant to any issue raised in the proceedings. I think that is a valid ground of objection and in any event I note that the subject of the inquiry is said to be information concerning the financial affairs of Rothwells. That is entirely open-ended and the interrogatory is very poorly drawn with insufficient particularisation to put the inquiry into a manageable context. On the other hand I am not persuaded that the transaction to which interrogatory 66 refers may not be relevant and the objection is not upheld.
52 Finally in this regard, objection is taken to interrogatories 180 and 181. They ask a series of questions about litigation in the Federal Court in respect of which the defendant was the applicant: see State of WA v Wardley Australia Ltd (1991) 30 FCR 245. The questions asked are about the State's pleading in its statement of claim and in respect of each matter pleaded, to which interrogatory 181 refers, a question about the nature of the pleading is followed by one asking whether the pleaded fact
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- is true. Speaking generally, the questions appear to relate to the solvency of Rothwells.
53 As I understand the position, admissions of fact made in a pleading may, generally speaking, be tendered in evidence against the party for whom the fact was pleaded. That was touched on in argument, but not developed to any extent. In particular, it was not submitted for the defendant that such evidence would be inadmissible for any reason and therefore that it would be oppressive to require answers to these interrogatories. On the other hand, the fact that such admissions might be proved by tendering the pleading seems to me not to provide a valid ground of objection to another otherwise proper interrogatory.
54 The original objection made, that taken in the affidavit of Mr Wauchope, is on the ground of relevance. As I understand the point, it is put that the pleadings relate to the financial condition of Rothwells in October 1987, prior to the rescue attempt, rather than in March 1988, after that attempt was made. At first sight, having regard to my limited knowledge of the facts as they are pleaded, the point would seem to be a weak one. No doubt the position might change, but to establish insolvency by October 1987 would seem to me, without more, to be relevant to the question whether insolvency remained by March 1988. It does not seem to me to be question of relevance so much as the probative value of the evidence which might be elicited by the answers to the interrogatories.
55 Finally in argument the proposition was put that answers to these interrogatories ought not to be required because they were really matters of expert evidence. That is no doubt true and I have discussed what, in my opinion, is the proper approach where an answer would require the expression of an expert opinion. In my view, if the defendant has available to it or may reasonably obtain the appropriate expert opinion, the answers sought, particularly in interrogatory 181 should be given. The objection as formulated in Mr Wauchope's affidavit, as it was expanded upon in argument, is not upheld.
56 It only remains to deal with the objection taken in argument, rather than in the affidavit of Mr Wauchope, that some of the interrogatories are embarrassing in the sense that they are so poorly expressed that the defendant would have difficulty formulating an answer because of an incapacity to understand what is sought and what the precise nature of the inquiry is. In some of these cases I have upheld objections on other grounds and I need not deal with those interrogatories again.
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57 As to interrogatories 52 to 57 inclusive, the question is asked rhetorically what is meant by "the financial affairs of Rothwells". What degree of specificity is required, it is asked. In my opinion, this misunderstands the nature of the interrogatories. The question is whether during a nominated period nominated individuals provided information to another concerning or regarding the financial affairs of Rothwells. The information sought is, in my opinion, readily identifiable. If such information was provided, the substance of what was said is sought. I would not uphold this objection.
58 On the other hand, interrogatories 154 and 155 seem to me to be impossibly vague, being concerned with "inquiries as to the commitment of the Government to provide support to Rothwells which would enable Rothwells to repay the Tipperary advance." I would uphold the objection on this ground which, in my opinion, is also made good in relation to the interrogatories 157 to 160 inclusive.
59 It follows then that in my opinion I should make the following orders on the applicant's amended chamber summons:
1. The plaintiff has leave to amend the chamber summons dated 28 January 2004 in terms of the minute dated 30 April 2004.
2. The interrogatories the subject of this judgment are those dated 30 June 1999 entitled "Readministered Plaintiff's Interrogatories". They have been served without leave. I grant leave to serve those which are specified in what follows. The service already effected upon the defendant shall be taken as sufficient service of the readministered interrogatories.
3. I give leave to further amend and administer the interrogatories numbered 15, 17, 25, 32, and 47 to 50 inclusive, but in the case of interrogatories 47 to 49 inclusive the words "the Department of Treasury or the Department of Premier & Cabinet" are to be deleted. As so amended or further amended those interrogatories are to be taken to have been sufficiently served.
4. The defendant shall file and serve answers to the following interrogatories as set out in the readministered interrogatories: i.e., interrogatories 9, 19, 21, 22, 24, 33, 34, other than 34(d), 35, 36(b) - (e), 42 to 44, 52 to 57,
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- 61, 62(a), (b) and (d), 63(a), (b), (d), (f), (h) and (j), 66 to 71, 75 to 79, 81, 83, 86 to 108, 110, 115 to 153, 174 to 177, 180 and 181.
- 5. I will hear the parties as to the time which ought to be allowed the defendant to answer those interrogatories, but I have formed the view that the period of 35 days nominated by the plaintiff in the amended chamber summons is too short to be reasonable.
60 As I have observed, I have worked, as have the parties, upon the interrogatories formulated by the plaintiff in the document dated 30 June 1999. I have therefore paid no attention to those interrogatories originally served which have been answered and I have given no consideration, of course, to those originally sought to be administered in the plaintiff's document but which, it was indicated, were withdrawn. Further, interrogatories 37 to 40 inclusive did not expressly fall into either of those categories but nor were they the subject of the original application for answers to interrogatories or the application in its amended form which was that argued before me. I take it that, for whatever reason, these interrogatories are also now not pursued.
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